2. Whereby an unmarried woman bequeaths money, household-goods, and other perfonal estate, 271 3. Whereby a widow bequeaths goods, and houses held by leafes for terms of years, 4. Whereby a married woman by virtue of her fettle- ment bequeaths personal estate, 5. Whereby a man bequeaths money, goods, &c. 6. Whereby a man bequeaths his ftock in trade and other personal eftate, to trustees in trust for his 7. Whereby a man devifes real estates, copyhold 11. Of a release or discharge for a legacy, with direc- Directions for writing and executing deeds, 12. Form of a discharge to executors where the testator ib. Of Inteftates. Of Administration; why it should be obtained, and who are entitled thereto. By whom it is to be granted. The Method of obtaining it, and the Expence thereof. How the fame may be revoked. Of THERE SECTION THE FIRST. INTESTATE S. HERE are divers kinds of inteftates. One that makes no will at all; another that makes a will and executors, and they refufe to act: in this cafe he dies. quafi inteftatus; that is, as if inteftate. But this latter is not that kind of inteftacy here intended: for in this cafe the law does not difpofe of the eftate; as here administration is to be granted cum teftamento annexo, that is, with the testament annexed; and then the duty of the administrator is very little different from that of an executor; he being to adhere to the teftament, which is to be his guide in dipofing of the estate and effects of the deceased. But as the former is that which is here intended, we fhall briefly take notice of the distinction Wentworth makes between a will and a • 2 Inft. 397. Black. Com. 2 V. 504. B teftament, teftament, without entering into a minute difcuffion of inteftacy, which would be fomewhat foreign to this subject, and therefore shall be referved for a fubfequent part of the work; it being our prefent defign to fhew how the law disposes of a perfon's estate in case he dies wholly intestate, and not to point out the various kinds of inteftacy.It is called a will, fays Wentworth, when there is an executor appointed; and when there is none, it is termed a teftament. So there may be a will where there is no teftament, and a teftament where there is no will. And where a teftament is made without an executor being named, this teftament is to be adhered to as a guide to the adminiftrator in difpofing of the eftate, in the fame manner, as where one or more exe cutors are named, and they refufe to act. SECTION THE SECOND. OF ADMINISTRATION; WHY IT SHOULD BE OBTAINED, AND WHO ARE ENTITLED THERETO. AN adminiftrator cannot act before letters of adminiftration are granted to him; he not being like an executor, who may do many acts before he proves the will; but an administrator may do nothing till letters of adminitration are fued. When letters of adminiftration are iffued, the perfon deputed by the ordinary, that is, he who grants the letters of administration, to adminifter the inteftate's goods, fhall have an action to demand and recover, as executor, the debts due to the inteftate f. If the deceafe die wholly inteftate, without making either will or teftament, then general letters of adminiftration must be granted by the ordinary to fuch adminiftrator as the statutes of 31 Edw. III. c. 11. and 21. Hen. VIII, c. 5. direct; and in confequence of which the ordinary is compellable to See, Inteftates in the Index. & Went. Off. Exec. 2. Black.Com. 2 V. 507. * Stat. 31 Edw. III. c. 11. grant grant administration of the goods and chattels of the wife to the hufband, or his reprefentatives, that is, his executors or adminiftrators, who, if the hufband die before adminiftration taken, will be entitled in equity, and not the wife's next of kin". and that the adminiftration of the wife's goods of right appertaineth to her husband, is confirmed by ftatute of 29 Car. II. c. 3. which enacteth, that the ftatute of the 22 & 23 Car. II. c. 1o. (commonly called the ftatute of diftributions) fhall not extend to the eftates of femes-covert that fhall die inteftate; but that their hufbands may demand and have adminiftration of their rights, credits, and other perfonal estates, and recover and enjoy the fame1. But if the wife was executrix to another; then as to the goods which she had in that capacity, administration must be granted to the teftator's next of kin *. By the ftatutes of Edward the Third and Henry the Eighth, before mentioned, the ordinary is compellable to grant administration of the husband's effects to the widow, or next of kin. But he may grant it to both, or either, at his difcretion. For, it being moved for a mandamus to the 8 Black. Com. 2 V. 504. m Mandamus is a writ, whereby a Cro. Car. 106. P. Will. 381. command iffues in the King's name, 3 Atk. 526. The husband has feldom occafion for taking administration on the death of his wife,unless it is to recover fomething that appertained to the wife, which the was not poffeffed of during the marriage; for immediately on marriage all the chattels-perfonal fhe is poffeffed of veft in her husband, and her chattels real he may make his own if he will. What these are, fee p. 28. 29.This being the cafe with respect to the wife's chattels, in order to preferve the fame, as well as any real eftate the may be poffeffed of from misfortunes that may happen to the hufband by bankruptcy or otherwife,a fettlement is ufually made in manner treated on in our work, entitled," The Trader's and Conveyancer's Guide and Guard," Chap. IX. k 3 Salk. 21. 1 Black. Com. 2 V. 496. 504. from the court of King's Bench, directed to any perfon, corporation, or inferior court of judicature, within the King's dominions, requiring them to do some particular thing therein speci fied which appertains to their office and duty. And this writ may be obtained for an infinite number of other purpofes. It is grounded on a fuggeftion, by the oath of the party injured of his own right and the denial of justice. Black, Com. 3 V. 110-The matter for which this writ is obtained must be laid before the court. 3 New Abr. 528. And as the matter must be laid before the court, it must be in term time, when the court is fitting. The manner of laying it before the court is by counfel, who moves the court on the oath of the injured party'; which oath is delivered to him in writing, with his inftructions, as previously drawn up by an attorney. B 2 official |